Citation: Regina v Merritt [1999] NSWCCA 29
Court: New South Wales Court of Criminal Appeal
Date: 10 March 1999
Judges: Wood CJ at CL, James J, Adams J
Background
The appellant, an Aboriginal man, was convicted by a jury in the District Court on two counts arising from events on 13 September 1995: stealing a motor vehicle and, more seriously, assaulting an Armaguard security guard with a sawn-off rifle with intent to rob him, in the course of which the guard was shot. The robbery took place at the Endeavour Credit Union inside the Royal Alexandra Children's Hospital at Camperdown.
It was not disputed that a man named Stephen Lord carried out the shooting. Lord later pleaded guilty. The Crown's case was that the appellant was the second hooded offender who accompanied Lord. The evidence against the appellant was entirely circumstantial, relying on witness descriptions, a Penry sketch, and other forensic indicators.
A key eyewitness, a courier named Yarrow, had a clear view of a man fleeing the scene. At trial he was asked to observe the appellant and stated that the appellant did not look like the man he saw, that he was considerably older, and that the person he observed appeared to be roughly 25 to 30 years of age. The trial judge had restricted the questioning of this witness on identification, which became a ground of appeal.
Legal Issues
- Whether the trial judge erred in preventing counsel from questioning a witness about identification of the appellant
- Whether the directions given to the jury on circumstantial evidence, and in particular on intermediate facts, were adequate and correct
- Whether the verdict was unreasonable or unsupported by the evidence
- Whether the Crown sentence appeal in respect of an escape offence should be allowed, and if so, what sentence was appropriate
- How the principles in Fernando and the appellant's Aboriginality bore on sentencing
Decision
The Court of Criminal Appeal allowed the conviction appeal. The Court found that the trial judge had erred in restricting counsel's questioning of the eyewitness Yarrow on identification. This was significant because Yarrow had effectively exculpated the appellant when asked to compare the person he saw with the man in the dock, and the ruling prevented the defence from fully developing that evidence before the jury.
The Court also found error in the directions given to the jury on circumstantial evidence. In particular, it considered that the judge's treatment of intermediate facts, that is, subsidiary factual conclusions the jury needed to reach on the way to the ultimate verdict, was insufficient or misdirected. Correct directions on this topic are required by the principles in Shepherd v The Queen and Barca v The Queen, which distinguish between facts that are "indispensable links" in a chain of reasoning and those that merely form part of a broader web of evidence.
The Crown's appeal against sentence in respect of a separate escape offence was also allowed. The Court considered the original sentence inadequate in light of the appellant's criminal history and the circumstances of the escape, while acknowledging the need to apply the principle of totality and to give appropriate regard to the appellant's Aboriginality under the principles in Fernando. The Court resentenced the appellant on the escape count, modifying the sentence downward from what it would otherwise have imposed, applying the usual rule that a successful Crown appeal leads to a degree of mitigation on resentencing.
On the outstanding robbery and vehicle theft convictions, the Court noted that if the appellant were retried and again convicted, any sentencing court would need to approach the matter afresh. The Court observed, without deciding, that the original sentences for those offences appeared arguably lenient given the seriousness of the robbery and the appellant's history.
Orders Made
- Conviction appeal allowed; convictions for stealing a motor vehicle and armed robbery with wounding quashed
- Crown sentence appeal in respect of the escape offence allowed
- Appellant resentenced on the escape count to three years imprisonment, comprising a minimum term of twenty months commencing 2 October 1997 and expiring 1 June 1999, and an additional term of sixteen months commencing 1 June 1999 and expiring 1 October 2000
- Special circumstances found to exist, warranting departure from the statutory ratio between minimum and additional terms
Key Takeaways
- A trial judge's restriction on defence questioning of a witness about identification can constitute reversible error, particularly where that witness's observations are capable of directly exculpating the accused.
- The distinction between "indispensable" intermediate facts and broader circumstantial strands, drawn from Shepherd v The Queen, requires careful and accurate jury directions; a failure to correctly direct on this distinction may render a conviction unsafe.
- Where a Crown appeal against sentence succeeds, the Court of Criminal Appeal confirmed the established rule that resentencing should reflect some moderation downward from what would otherwise be appropriate, as a matter of fairness to the appellant.
- The principles in Fernando require sentencing courts to give genuine consideration to an offender's Aboriginality and its relevance to background and circumstances, balanced against the need to reflect the seriousness of the offending.
- Eyewitness evidence that affirmatively points away from the accused carries forensic weight that the defence is entitled to fully explore before the jury.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW)
- Correctional Centres Act 1952 (NSW)
- Sentencing Act 1989 (NSW)
Cases:
- Shepherd v The Queen (1990) 170 CLR 576
- Barca v The Queen (1975) 133 CLR 82
- Weissensteiner v The Queen (1993) 178 CLR 217
- M v The Queen (1994) 181 CLR 487
- Peacock v The King (1912) 13 CLR 619
- Jones v Dunkel (1959) 101 CLR 298
- Neal v The Queen (1982) 149 CLR 305
- R v Fernando (1992) 76 A Crim R 58
- Gilmore (1979) 1 A Crim R 416
- Bedford (1986) 28 A Crim R 311
- R v Palmer (1981) NSWLR 209
- R v Russell (unreported, NSWCCA)